Khan v State of Queensland[2020] QIRC 193

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

Appeal Details

1. [1]
   Mr Khan is employed by the State of Queensland (Department of Housing and Public Works) ("the Department").

2. [2]
   Mr Khan's substantive position is Maintenance Support Officer (AO3). Since 24September 2018, he has been continuously performing the duties of AO4, Senior Business Support Officer. Both roles are within QBuild, Building Policy and Asset Management.

3. [3]
   On 23 September 2020, Mr Khan made a request that he be appointed permanently to the higher classification level. In a decision delivered by email on 21 October 2020, MrKhan was informed that the Deputy Director-General had determined that his engagement is to continue according the terms of his existing temporary placement. The reasons given were:

• The purpose of your current placement in the role of AO4, Senior Business Support Officer within QBuild, BPAM is to backfill a substantive employee while the substantive employee is relieving in an alternative position.

• On the return of the substantive employee on 30 January 2021, there will no longer be a continuing need for your to be engaged in the position of AO4, Senior Business Support Officer within QBuild, BPAM.

Relevant sections of the Act and Directive

4. [4]
   In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").

5. [5]
   Section 149C of the PS Act relevantly provides

149C Appointing public service employee acting in position at higher classification level

1. (1)
   This section applies in relation to a public service employee if the employee-

1. (a)
   is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and

2. (b)
   has been seconded to or acting at the higher classification level for a continuous period of at least one year; and

3. (c)
   is eligible for appointment to the position at the higher classification level having regard to the merit principle.

…

2. (2)
   The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after -

1. (a)
   the end of 1 year of being seconded to or acting at the higher classification level; and

2. (b)
   each 1-year period after the end of the period mentioned in paragraph (a).

…

(4A) In making the decision, the department's chief executive must have regard to –

1. (a)
   the genuine operational requirements of the department; and

2. (b)
   the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.

The Directive

6. [6]
   While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

4. Principles

4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.

4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:

1. (a)
   when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return

2. (b)
   when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles

3. (c)
   to perform work for a particular project or purpose that has a known end date

4. (d)
   to perform work necessary to meet an unexpected short-term increase in workload.

…

6. Decision making

6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documents an remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.

6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

1. (a)
   the genuine operational requirements of the department, and

2. (b)
   the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

7. Statement of reasons

7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:

1. (a)
   set out the findings on material questions of fact, and

2. (b)
   refer to the evidence or other material on which those findings were based.

8. Appeals

8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.

…

What decisions can the Commission make?

7. [7]
   In deciding this appeal, s 562C of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:

1. (a)
   confirm the decision appealed against; or

…

3. (c)
   For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Mr Khan's reasons for appeal

8. [8]
   Mr Khan has been temporarily employed at the higher classification for a period of two years. There are no issues raised by the respondent regarding merit. His request for a review was validly made. He is a person who may appeal.

9. [9]
   In his Appeal Notice filed on 22 October 2020, Mr Khan states the following reasons for his appeal, in summary:

• This decision has been made without the knowledge that the substantive employee will commence leave at approximately the same time that my current higher duties period is due to expire.

• Given that I have had 9 extensions of my higher duties during the time acting in this role, I cannot foresee any reason why I would not be extended again.

• My manager advises me that the current extension period was set at the 29/01/2021 simply because this was the longest extension period that could be applied when implementing the extension.

Department Submissions

10. [10]
    On 29 October 2020, the Department filed extensive submissions in response to MrKhan's appeal. I have considered all aspects of the submissions even if I do not refer to them here.

Purpose and nature of Mr Khan's temporary placement

11. [11]
    The purpose of Mr Khan's temporary placement in the AO4, Senior Business Support Officer role (the AO4 role), has been to backfill the substantive employee, while the substantive employee has been relieving in an alternative position.

12. [12]
    Since 24 September 2018, Mr Khan's temporary placement in the AO4 role has been extended on nine occasions.

13. [13]
    Mr Khan's current temporary placement in the AO4 role is due to expire on 29 January 2021, which coincides with the date that the substantive employee is due to the return to the role.

Response to Mr Khan's reasons for appeal

14. [14]
    The Department submits that when the substantive employee returns to the AO4 role, there will no longer be a continuing need for Mr Khan to be placed in the AO4 role.

15. [15]
    The Department does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4 role.

16. [16]
    With regard to Mr Khan's submission that the substantive employee will commence leave at approximately the same time his temporary placement in the AO4 role is due to expire, it is not appropriate for the Department to comment on the personal circumstances of the substantive employee.

17. [17]
    The Department says that even if it were the case that the substantive employee was to access a period of leave, the Directive at cl 4.2 contemplates such a circumstance as one supporting the Department's decision to temporarily engage or place Mr Khan in the position.

18. [18]
    Further, the Department says that the written notice to Mr Khan is compliant with section 149C of the PS Act as it states the reasons for the decision and the total continuous period for which the person has been employed at the higher level and how many times the person's engagement at the higher classification level has been extended.

Consideration

19. [19]
    The Directions Order issued by the Industrial Registry on 22 October 2020 invited MrKhan to make submissions in reply by 4pm on 5 November 2020. No such submissions were made.

20. [20]
    Mr Khan's appointment is for the purpose of backfilling the person substantively employed in the role while that person is relieving in an alternative position. The date that person is set to return to the position is 30 January 2021. This being the case, cl 4.2 of the Directive supports that Mr Khan's appointment to the higher classification remain temporary.

21. [21]
    While there is no information before me regarding the personal circumstances of the person substantively employed in the role, for completeness, I will address the possibility.

22. [22]
    In the event that the person substantively employed in the role commences a period of leave such as parental, long service, recreation or long-term sick leave either prior to or on 30 January 2021 and Mr Khan's temporary appointment to the AO4 role were to be further extended to replace that person until the date of their expected return, the circumstances would be such that cl 4 of the Directive would support his engagement remaining temporary.

23. [23]
    I am satisfied that the decision had regard to both s 149C of the PS Act and the Directive and also that the written notice provided to Mr Khan complies with requirements of s149C(5) of the PS Act.

24. [24]
    The decision that Mr Khan's engagement is to continue according to the terms of his existing temporary placement was fair and reasonable.

25. [25]
    The decision appealed against is confirmed.